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Beginning 2024, Employers Will Be Required to Provide 40 Hours (or 5 Days) of Paid Sick Leave to All Employees
An overview of the Paid Sick Leave Law – (courtesy of Cook BrownLLP)
In 2014, California enacted the Healthy Workplaces, Healthy Families Act, also known as the Paid Sick Leave Law (PSLL). The PSLL covers all employers in the State of California as well as all full-time, part-time, and temporary employees who have worked in California for 30 or more days within a year from the date of hire. Employees covered by a valid collective bargaining agreement that, among other things, expressly provides for paid sick days, are not covered by the PSLL.
The PSLL currently requires that all employers provide 24 hours (or 3 days) of paid sick leave. Paid sick leave may be calculated using one of two methods – the “Accrual Method” or the “Lump-Sum Method.”
Currently, under the Accrual Method, paid sick time accrues at a rate of 1 hour for every 30 hours worked during a 12-month period of employment (or at a rate set by the employer that guarantees no less than 24 hours of paid sick time by the 120th calendar day of employment). Under the Lump Sum method, employers can front load the 24 hours (or 3 days) of paid sick time at the beginning of each calendar year or 12-month period.
Changes to the PSLL Effective January 1, 2024
On October 4, 2023, Governor Newsom signed Senate Bill No. (SB) 616, which amends the PSLL. The following changes are effective January 1, 2024.
Collective Bargaining Agreement Employees
Current: Collective Bargaining Agreement (CBA employees) are not specifically allowed to use paid sick days for the same reasons as covered employees, which are:
- Diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee or an employee’s family member.
- For an employee who is a victim of domestic violence, sexual assault, or stalking.
New: CBA employees are now specifically allowed to use paid sick leave for the same reasons as covered employees and are also granted protection from retaliation for use of accrued paid sick leave.
Note: accrual rate of one hour for each 30 hours worked remains inapplicable to CBA employees.
Total Paid Sick Leave
Current: Employers must provide 24 hours or 3 days of paid sick leave that is available to use by the completion of the employee’s 120th calendar day of employment.
New: Employers must provide 40 hours or 5 days of paid sick leave that is available to use by the completion of the employee’s 200th calendar day of employment.
Cap on Use of Paid Sick Leave
Current: Employers may limit the annual use of paid sick leave to 24 hours or 3 days.
New: Employers may limit the annual use of paid sick leave to 40 hours or 5 days.
Cap on Accrual of Paid Sick Leave
Current: Employers using the Accrual Basis to calculate paid sick leave may set an overall accrual cap of paid sick leave at 48 hours or 6 days.
New: Employers using the Accrual Basis to calculate paid sick leave may set an overall accrual cap of paid sick leave at 80 hours or 10 days.
Reminder:
- Employers may choose to apply the Accrual Method, where paid sick leave days accrue at a rate of one hour for each 30 hours worked and a certain amount of unused paid sick leave carries over to the next year, or
- Employers may choose to apply the Lump Sum Method, where paid sick leave days are front-loaded at the beginning of the employment.
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SB 740 Expands Prevailing Wage and Apprenticeship Obligations to Certain Industrial Facilities in the Private Sector
Courtesy of Atkinson, Andelson, Loya, Ruud and Romo
Key Points:
- SB 740 is a major expansion of SB 54, which in 2014 imposed prevailing wage and “skilled and trained workforce” requirements on private-sector oil and gas refineries.
- SB 740 extends SB 54 to hydrogen manufacturing facilities, biofuels manufacturing facilities, carbon dioxide capture facilities, and to facilities manufacturing certain chemicals.
- SB 740 is the latest step by the State of California to utilize so-called “health and safety” legislation to apply public-sector prevailing wage and apprenticeship requirements to businesses in the private sector.
- Ten years ago, SB 54 ushered in a wave of unionization for the state Building and Construction Trades at California oil and gas refineries. A similar trend is likely to emerge at industrial facilities impacted by SB 740.
On September 30, 2023, Governor Newsom signed SB 740 into law. The law is effective on January 1, 2024, but SB 740’s requirements apply only to contracts “awarded, extended or renewed on or after January 1, 2024.” As such, facility owners and covered contractors may be able to delay compliance with SB 740 by renewing agreements before the end of the year.
SB 740 expands the Health and Safety Code to impose prevailing wage and apprenticeship requirements on a variety of manufacturing facilities, including facilities manufacturing hydrogen, biofuels, and carbon dioxide (CO2) capture and sequestration. SB 740 also applies to facilities manufacturing the chemicals of ammonia, chlorine, hydrogen fluoride, sulfur dioxide and hydrogen chloride, whether as intermediate or end products.
SB 740 is essentially an expansion of SB 54, which in 2014 controversially imposed prevailing wage and apprenticeship obligations on private-sector oil and gas refining facilities.
SB 740 utilizes perceived health and safety concerns at industrial facilities to impose strict pro-union working conditions at covered facilities. As was the case with SB 54 in 2014, SB 740 functionally requires covered facility owners to use contractors signed with the building trades unions to perform any scope of work covered by Building and Construction Trade labor agreements.
A Major Expansion of Prevailing Wage in the Private Sector
SB 740 represents the latest effort by California to apply prevailing wage and apprenticeship obligations to private industry. Traditionally, only public-sector construction activities have been subject to prevailing wage legal requirements. In 2014, in SB 54, California applied prevailing wage and apprenticeship requirements to private-sector oil and gas refineries. SB 54 was a “first in the nation” expansion of prevailing wage law to private sector activities. Because of this, SB 54 was, and remains, a highly controversial piece of legislation.
Under SB 740, covered employees must be paid at least the minimum prevailing hourly wage as determined by the Department of Industrial Relations (“DIR”) for the applicable scope of work. The DIR sets prevailing wages based on the wage and benefit rates provided for in the union labor agreement covering similar work. As such, the DIR’s prevailing wage rates are significantly higher than the non-union market rate for similar scopes of work.
Skilled and Trained Workforce Requirements
SB 740 imposes “skilled and trained workforce requirements” on covered contractors. To comply, a contractor’s workforce must consist entirely of either “skilled journeypersons” or registered apprentices. A skilled journeyperson is either a graduate of a registered apprenticeship program or an individual who has as many hours of on-the-job experience in the apprenticeable occupation that would be required to graduate from the apprenticeship program. However, SB 740 requires that, at a minimum, at least 60% of a contractor’s skilled journeypersons must be graduates of an approved apprenticeship program, meaning that a maximum of only 40% of the workforce may qualify as a “skilled journeyperson” through on-the-job experience.
Forcing a Workforce Shift to Unions Aligned with the Building Trades
Similar to SB 54, SB 740 is designed to pressure covered contractors to sign with unions that are members of the Building and Construction Trades. As is the case of public works, by forcing all contractors to pay prevailing wages (i.e., union scale), the law creates a market incentive for contractors to negotiate or sign to a labor agreement with the respective craft unions.
In addition, most state-approved apprenticeship programs are affiliated with construction unions that are members of the California Building and Construction Trades. In many cases, depending on the geography and the craft at issue, a contractor will only be able to comply with the skilled and trained workforce requirement by signing with a construction union, which will allow the contractor to access the union’s apprenticeship program. In the case of SB 54, many refinery contractors were able to negotiate arrangements with the construction unions allowing for enrollment of the contractor’s current employees in the union. As part of this, many contractors were able to negotiate for and access accelerated apprenticeship programs allowing the contractors to meet the requirement to employ a mandated ratio of graduated journeypersons.
As was also the case with SB 54, facility owners are likely to face pressure to enter into project labor agreements (“PLAs”) with the Building and Construction Trades requiring that all covered work be performed by contractors using only union craft labor under the PLA.
Exclusion of the Owner’s Own Employees
Notably, SB 740 does not apply to the owner’s own employees, as opposed to employees of any contractors hired by the owner. As such, SB 740 will encourage facility owners to “in-source” functions currently performed by contractors. After the passage of SB 54, many California refineries looked for opportunities to limit the impact of the law on their operations by selectively in-sourcing certain tasks previously assigned to contractors.
Conclusion
SB 740 is a long-predicted expansion of SB 54’s application of prevailing wage and skilled and trained workforce requirements in the private sector. Facility owners and contractors affected by SB 740 must build a strategy to succeed under onerous new labor requirements. For many years, our law firm has advised businesses on compliance with prevailing wage, and skilled and trained workforce requirements, and represented businesses in negotiations with the construction trades unions. If you have questions regarding the impact of SB 740 on your business, do not hesitate to contact our team to discuss your options.
If you have questions about new prevailing wage and apprenticeship obligations, contact the authors or your usual trusted counsel at AALRR.
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Workplace Violence Prevention Plan Requirements
SB 553 adds section 6401.9 to the California Labor Code and requires almost all employers to implement a workplace violence prevention plan (“WVPP”) by July 1, 2024. The new section will be implemented and enforced by Cal/OSHA.
WVPPs will be structured similar to injury & illness prevention plans ("IIPP") and will require an employer to (1) designate the person responsible for implementing the program, (2) identify and correct hazards through periodic inspections, (3) train employees on hazards, and (4) maintain records of incidents.
Unlike an IIPP, covered employers must “obtain the active involvement of employees” and any unions “in developing and implementing the plan, [and], in designing and implementing training.” Employers may incorporate the WVPP into an existing IIPP.
Required Information.
The WVPP must be in writing, be available to employees, and include the following:
- Names or job titles of the persons responsible for implementing the plan;
- Methods the employer will use to implement the plan, including how to obtain the active involvement of employees and authorized employee representatives in developing and implementing the plan;
- Methods the employer will use to coordinate implementation of the plan with other employers, when applicable;
- Procedures to ensure that all employees comply with the plan;
- Procedures to communicate with employees regarding workplace violence matters, including how employees can report, how their concerns will be investigated, and how they will be informed of the results of the investigation and corrective action taken;
- Procedures prohibiting retaliation against the employee who report an incident;
- Procedures to respond to actual or potential workplace violence emergencies, including alerting employees to emergencies, evacuation or sheltering plans, and how to obtain help from staff assigned to respond to emergencies;
- Procedures to identify and evaluate workplace violence hazards, including scheduled inspections to identify unsafe conditions and practices;
- Procedures to investigate and correct past incidents.
Training.
The law requires employers to train employees on numerous topics, including the law’s definitions and requirements, the WVPP itself, the documentation required under the plan, how to report incidents and concerns, and ways employees can participate in the WVPP’s development and implementation.
Record Keeping Requirements.
The law also requires employers to maintain various records, including a separate violent incident log, records of the employees’ training, and records of workplace violence investigations. Under the new law, employee concerns of workplace violence must be investigated as part of the employer’s responsibility to identify and correct workplace hazards, and then the results of the investigation must be communicated to the employee. Employers also have a duty to conduct an investigation after incidents of workplace violence.
Please contact us with any questions about Workplace Violence Prevention Plans. By: Roger M. Mason, Esq., Rachael E. Brown, Esq., Caitlin E. Kaufman, Esq.
For more information about any of these employment legal updates, please contact our employment team at 408-356-3000 or via email: Roger Mason at rmason@smllp.com, Rachael Brown at reb@smllp.com, or Caitlin Kaufman at ckaufman@smllp.com.
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California's New Leave of Absence for Reproductive Loss
California has created another new leave of absence for employers to manage. Starting January 1, 2024, private employers with five or more employees, and all public employers, must provide eligible employees with reproductive loss leave for qualifying events. This leave is an entirely new leave entitlement — distinct from last year’s bereavement leave, family and medical leave (e.g., California Family Rights Act (CFRA)), pregnancy disability leave (PDL) and other leaves of absence.
Employees are eligible for reproductive loss leave if they’ve been working for the employer for at least 30 days prior to the leave’s start and suffer a qualifying event.
Eligible employees may take leave for up to five days when they suffer a reproductive loss event, which is the day, or the final day for a multiple day event, of one of the following:
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Failed adoption: The dissolution or breach of an adoption agreement with the birth mother or legal guardian, or an adoption that is not finalized because it is contested by another party.
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Failed surrogacy: The dissolution or breach of a surrogacy agreement, or a failed embryo transfer to the surrogate.
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Miscarriage: May be a miscarriage by a person, by the person’s current spouse or domestic partner, or by another individual who would have been a parent as a result of the pregnancy.
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Stillbirth: May be a stillbirth resulting from a person’s pregnancy, the pregnancy of a person’s current spouse or domestic partner, or another individual that would have been a parent as a result of the pregnancy.
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Unsuccessful assisted reproduction: An unsuccessful round of intrauterine insemination or of an assisted reproductive technology procedure (i.e., artificial insemination or an embryo transfer, including gamete and embryo donation). Assisted reproduction does not include reproduction through sexual intercourse. This event applies to a person, the person’s current spouse or domestic partner, or another individual, if the person would have been a parent of a child born as a result of the pregnancy.
The five days of leave don’t need to be consecutive. Plus, if an employee experiences more than one reproductive loss event within a 12-month period, an employee can receive another five days of leave. Employers may cap reproductive loss leave at 20 days within a 12-month period.
Generally, reproductive loss leave must be taken within three months of the reproductive loss event; however, if prior to or immediately following a reproductive loss event, an employee is on or chooses to go on leave under another leave entitlement (e.g., PDL, CFRA, etc.), then the employee may complete their reproductive loss leave within three months of the end of the other leave.
Reproductive loss leave is unpaid, but employees can use existing vacation, personal leave, accrued and available sick leave, or compensatory time off that is otherwise available to the employee.
Unlike California’s bereavement leave, employers may not request documentation to certify reproductive loss leave.
Employers must maintain the confidentiality of any employee requesting reproductive loss leave and cannot terminate, discriminate or retaliate against employees for exercising their rights under the law.
James W. Ward, J.D., Employment Law Subject Matter Expert/Legal Writer and Editor, CalChamber
CalChamber employment law experts will cover more new 2024 employment laws in more detail in the October issue of our HRCalifornia Extra newsletter (subscribe to HRCalifornia Extra) and in our annual new laws whitepaper (coming in November). Not a member? Learn more about how HRCalifornia can help you.
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Tips for Navigating The Newly Released Form I-9
HRWATCHDOG OCTOBER 24, 2023 477
The new Form I-9 was released by the U.S. Citizenship and Immigration Services agency (USCIS) on August 1, 2023, and employers must begin using the new version no later than November 1, 2023. Note that there is no need to complete new forms for current employees simply because an updated form has been issued.
Important Changes
While there were more than a dozen changes made to the form and instructions, employers should pay particular attention to the following:
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Some Fields Have Been Moved to Standalone Supplement Pages: The latest version of Form I-9 has been condensed down to one fillable page, with the lists of acceptable documents on a second page. The Preparer/Translator Certification section on the previous version was moved to a separate standalone “Supplement A” that employers can use when necessary, and the Reverification section (formerly Section 3) was moved to a separate standalone “Supplement B” that can be used for rehires and reverification of documents. Employers can simply attach these supplements when needed to the Form I-9 that was completed at the time of hire.
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Fillable on Mobile Devices: Form I-9 can now be filled out on tablets and mobile devices by downloading it onto the device and opening it in the free Adobe Acrobat Reader app.
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No More “N/A” in Blank Fields: In the past, employers were required to write “N/A” in most fields that were left blank, even those that were optional to complete such as an employee’s email address and phone number. Instructions for the new Form I-9 say that “employees must provide their current legal name, complete address, and date of birth” but that “if other fields do not apply, leave them blank.” Thus, employers should no longer put “N/A” in blank fields.
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Remote Inspection Checkbox: A checkbox was added so that employers who use E-Verify can indicate whether they have remotely examined Form I-9 documents. Note that remote inspection is now permitted only for employers who use E-Verify. Read more about the new remote inspection rules.
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Expired Documents May Not Actually Be Expired: It has always been the case that some employment authorization documents that appear on their face to be expired may actually have been extended by the issuing authority — even though no new card is issued to the individual. For example, the government may issue an automatic extension and provide notice of extensions via publication in the Federal Register. USCIS has printed a reminder of this on the new Form I-9, noting: “All documents containing an expiration date must be unexpired” followed by “Documents extended by the issuing authority are considered unexpired.” Employers can learn more about these extensions on the I-9 Central website.
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“Acceptable Receipts” List: New to the Form I-9 is a helpful reminder of the “receipt rule” which allows employers to take certain receipts as acceptable stand-ins for a short time in place of lost or damaged documents. Acceptable receipts are now listed at the bottom of each column of documents.
More Information
USCIS has published a list of all changes to the Form I-9 and instructions at Form I-9 Summary of Changes Fact Sheet (uscis.gov).
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Final Rule Effective for the Davis-Bacon Act
Effective October 23, 2023, the U.S. Department of Labor implemented the final rule, “Updating the Davis-Bacon and Related Acts Regulations.” This implementation follows the official publishing of the final rule in the Federal Register on August 23, 2023.
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The change in regulation provides greater clarity and enhances the Davis-Bacon and Related Acts (DBRA) regulations’ effectiveness in the modern economy. Updates to the regulations strengthen and streamline the process for setting and enforcing prevailing wage rates on federally funded construction projects. This ensures that when the federal government invests in infrastructure, it also invests in workers.
These regulatory changes improve the department’s ability to administer and enforce DBRA labor standards effectively and efficiently. These changes include:
- Creating several efficiencies in the prevailing wage update system and ensuring prevailing wage rates keep up with actual wages, which over time would mean higher wages for workers.
- Returning to the definition of “prevailing wage” used from 1935 to 1983 to ensure prevailing wages reflect actual wages paid to workers in the local community.
- Periodically updating prevailing wage rates to address out-of-date wage determinations.
- Providing broader authority to adopt state or local wage determinations when certain criteria are met.
- Issuing supplemental rates for key job classifications when no survey data exists.
- Updating the regulatory language to better reflect modern construction practices.
- Strengthening worker protections and enforcement, including debarment and new anti-retaliation provisions.
Visit our website for more information on the Davis-Bacon Final Rule and the Davis-Bacon Act.
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